Getting back in Blackstone’s game

The Law of the Executive Branch: Presidential Power

By Steve Sheppard

In a recent post on Volokh Conspiracy, George Washington University law professor Orin Kerr writes that we have passed the “Golden Age of Treatises.” Considering an obituary of a law professor who had written a law treatise, Securities Regulation, Kerr observed how its author, Louis Loss, had been seen as giving shape and direction to a whole field of law. Yet in 1993, Professor Loss already feared that some scholars disregarded these books that had “shaped the law”, books that had essentially “made a field of law that didn’t exist before.” Professor Kerr, writing two decades later, sees writing a treatise is akin to blogging. That is, he thinks it is valued by his colleagues not as serious scholarship (like law review articles) but more as service (like blog writing). In this he is, for now, quite right. The great American treatise — works like the securities volume of Louis Loss as well as the great monographs by authors from Joseph Story to E. Allan Farnsworth — evolved and then, largely disappeared.

Many readers will be surprised to learn that the monograph form of legal treatise has grown rather rare in the United States. The treatise in law, after all, is still influential in England and Scotland, and of course treatises are essential legal materials in all the civil law countries. There are still a few commercial presses that publish or republish treatises, but most of these books have grown from one volume by one or two authors into monstrous references of many volumes and many voices. Indeed, Professor Loss’s Securities Regulation treatise, now curated by others, takes eleven volumes, consisting of a staggering 5,740 pages.

Most of the recent editions of US treatises narrate the law from various approaches in different jurisdictions, rather than arguing to organize concepts and resolve disputes among competing sources. The one-volume student editions that are cut from these massive slabs of law, oftentimes retain their generic multi-jurisdictional feel without ever reintroducing the particular voice of the original authors. (There are rare exceptions.) Such books are sources for footnotes rather than broad and explanatory syntheses of their fields. They have become a staple of commercial presses because their many volumes and annual supplements generate more revenue than would more traditional, more focused, and less generic law books. Anecdotally, it would seem that the academic disdain for the treatise followed the publisher’s abandonment of the monograph treatise. Once the contracts had dried up, the academics disdained them. It is a story like the fox and the grapes.

Yet the need persists for genuine treatises, books on American law in the tradition of books by Justice Joseph Story, Dean William Prosser, and Professor E. Allan Farnsworth. These were books like Professor Loss’s first edition (in 1951, of only 1300 pages), that could explain and illuminate a field or a topic with sufficient art and pith to be read and absorbed by a reader, and with sufficient clarity and analysis to support an argument at law. Even in its unwieldy modern form, the treatise remains important to the bench and bar. In 2012 treatises were cited, by that title, over 1800 times by US courts.

Therefore, it is a great pleasure to be involved in Oxford University Press’s return to the world of the treatise. The Oxford Commentaries on American Law is a new series of law treatises, written by scholars for the use of judges, lawyers, academics, and students, to explain and reform the law of the United States. These monographs will restore the place of scholarly legal books as a tool for the interpretation and application of the law by the bench and bar.

The first title, The Law of the Executive Branch: Presidential Power by Louis Fisher, explores the law and custom of the powers of the American presidency and their legal limits. While exploring US constitutional law, it also reframes that law by organizing it in a non-traditional way. The hope will be that this sort of re-framing of the law — a hallmark of the treatise tradition — will help restore the role of the treatise as a source of legal clarity and reform while at the same time conserving a traditional basis of legal analysis.

Though the Oxford Commentaries on American Law is new, it is not truly novel. Rather, it might be better to see this as the re-launch of a very old Oxford series, one that has been silent for over two centuries. The original series had been published under the auspices of the press in the 1760s, by the Oxford professor who famously reformed OUP in the eighteenth century. Oxford University Press published Sir William Blackstone’s Commentaries on English Law, a volume a year from 1765 to 1769. It had a profound influence on the American bench, long after US independence. The Oxford Commentaries on American Law is in its tradition, though, of course, it will ultimately be written by many hands. Ultimately, it will be these hands that will, as Professor Loss said, that now shape the law.